It’s 3:00 am, and I’m laboring to pull together a slide deck for a speech in a few hours. My hosts want me to cover all the essentials of e-discovery and then take questions. They’ve generously allotted thirty minutes.
So, I’m struggling to come up with a few hard, fast rules to share; rules so plain and true I can preface them “always” and “never. So far, I’ve got:
ALWAYS…
- Put a written legal hold in place
- Make sure the legal hold is clear, personal and practical
- Test searches against representative samples of data
- Settle on forms of production before collection
NEVER…
- Accept IT knows what to do until you’re certain of it
- Rely exclusively on custodial hold and collection
- Assume that what a vendor asks for is the price you’ll pay
- Review until you deduplicate
As I ponder how I’ll fill out my list to ten items, my thoughts drift to another list of commandments from a long ago CLE program. I’m reminded that any list of “always” and “never” must occasionally yield to those with the expertise and judgment to ignore them.
There are great lessons in life that stick with you. If you’re very lucky, there are lots of them. One of mine was listening to the late, great Irving Younger share his Ten Commandments of Cross Examination. How I envy Judge Younger his singular delivery and gift for storytelling! If I ran the world, no lawyer would be admitted to the courthouse without affirming he or she had listened to a recording of Younger’s Ten Commandments of Cross-X at least twice.
One of Younger’s commandments held that a lawyer should never permit a witness to repeat direct testimony on cross examination. He tempered this point with a story about Max Steuer, a bygone trial lawyer with the unenviable task of defending the owners of the Triangle Shirtwaist Factory, whose sweatshop burned in 1911, killing 146 seamstresses trapped inside. In its sadness and its role as a catalyst for change, the Triangle Shirtwaist fire was the 9-11 of its day.
A witness named Katy told a horrific tale of surviving the conflagration and carnage. All who heard the sad young woman were stunned and angered. But, on cross examination, Steuer not only had Katy retell her story, he had her tell it again and again.
She did. Again and again. Always verbatim, never changing a word.
Steuer’s ear caught something others missed, and by breaking the rule against repeating damaging testimony, Max Steuer brilliantly demonstrated that Katy had been scripted and coached too well. An offended jury returned an acquittal.
But unless your mastery of e-discovery rivals Max Steuer’s legendary courtroom prowess, the list of always and never items above are worth observing.
Now, how about contributing some of your own “always” and “never” items as comments below? Thanks.
Ball in your Court 
Jeff Johnson said:
Always consider proportionality via the paradigm of scope (quality), cost and time.
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David Tobin said:
Since 99.999% of attorneys don’t have the e-discovery knowledge of Craig Ball, as an IT guy, I would recommend vetting an e-discovery vendor with a solid Project Manager to lead the way.
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Aaron Taylor said:
Corporate counsel: Never think you know more about e-discovery than discovery-specialist attorneys…they will eat your lunch.
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CAtkins Support said:
If you have an internal Litigation Support department, always get them involved from the beginning of the matter. They can help!
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Clark, Steve said:
Always:
*Document your steps, whether there are several or hundreds.
*Collaborate as often as possible and on as much as possible – even if it feels unnatural.
Never:
*Present/submit the first version of a budget.
*Presume that your definition of something is the same as your adversary’s – spell it out (see, for example: “metadata,” “rolling,” “reasonable efforts,” etc.).
*Accept that hope is lost – virtually everything can be fixed and/or remedied if the right people get involved (but it also may require some humility, time, and expense).
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craigball said:
Steve: these are first rate. Thanks.
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Melinda F. Levitt said:
Sorry, am trying to catch up on reading and I know I am a bit behind to comment here, but here are my “always” . . .
ALWAYS make sure that any automatic purge ;system — whether for emails or edocs — has been disabled for those whom you reasonably believe are likely custodians and/or have relevant information.
ALWAYS ask where are the electronic records, including computer hard-drives, of former employees and make sure that if there is a protocol to eradicate those files or to wipe clean a hard-drive after a set amount of days (e.g., 60 days post termination) that any such protocol is cancelled for any likely relevant former employees — or any such person who leaves the company during the pendency of the matter.
ALWAYS ask what the protocol is for back-up tape rotations — and ALWAYS ask where the back-up tapes are for each relevant server. (You might determine that it is not necessary to preserve back-up tapes for a long duration, if at all, but you should know what is the standard protocol.)
ALWAYS explain to in-house counsel or whatever client representative with whom you are dealing, that in order to collect documents thoroughly there will need to be an interview conducted of each likely custodian. NO ONE saves documents in exactly the same way and much more often than not, people completely ignore any company policy on the subject, which is rarely monitored in the first place.
ALWAYS beg to be able to have access directly to the company’s IT personnel so that you (and your own IT specialist) can have a meaningul discussion about company protocols and practices relating to document management and preservation. While we love our client’s in-house counsel or COO, etc., the vast majority have no in-depth understanding of the company’s systems and protocols.
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